Saltzman v. Broussard

736 So. 2d 243, 1999 WL 44843
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1999
Docket98-1065
StatusPublished
Cited by2 cases

This text of 736 So. 2d 243 (Saltzman v. Broussard) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Saltzman v. Broussard, 736 So. 2d 243, 1999 WL 44843 (La. Ct. App. 1999).

Opinion

736 So.2d 243 (1999)

Marai SALTZMAN, Plaintiff— Appellant,
v.
Travis M. BROUSSARD, Farm Bureau Insurance Company, Kevin Saltzman and State Farm Insurance Company, Defendants—Appellees.

No. 98-1065.

Court of Appeal of Louisiana, Third Circuit.

February 3, 1999.

*244 Clayton Arthur Larsh Davis, Lake Charles, for Marai Saltzman.

Frank M. Walker Jr., for Travis M. Broussard et al.

Robert Samuel Dampf, Lake Charles, for State Farm Fire & Casualty.

H. O. Lestage III, De Ridder, for Kevin Saltzman.

Chantell M. Smith, AGA, Baton Rouge, for Louisiana, Dept. of Wildlife & Fisheries.

BEFORE: THIBODEAUX, AMY, and SULLIVAN, Judges.

THIBODEAUX, Judge.

Marai Saltzman appeals a summary judgment granted to State Farm Insurance, her former liability and homeowner insurer, for injuries she sustained in a boating accident with her former husband during their marriage. The basis for the summary judgment was an exclusion of coverage for bodily injury to an insured. Marai Saltzman was a named insured on the policy and was married to and residing with the other named insured, Kevin Saltzman, at the time of the accident. Following our de novo review of the record and for the following reasons, we affirm the summary judgment granted to State Farm Insurance Company.

I.

ISSUE

Does the exclusion in a homeowner's liability policy denying coverage to an insured violate the public policy considerations of La.R.S. 22:655(D), Louisiana's Direct Action Statute?

II.

FACTS

On July 7, 1996, Marai Saltzman was injured when a motorboat operated by her husband, Kevin Saltzman, collided with a boat operated by Travis Broussard. Marai and Kevin Saltzman were subsequently divorced but were married and living together at the time of the boating accident. While living together as husband and wife, Kevin and Marai obtained a homeowner's and personal liability insurance policy from State Farm which was effective on the date of the accident. The named insureds on the policy were listed as "Saltzman, Kevin J. and Marai D."

Marai sued the other boat operator and his insurer and subsequently settled with those defendants. She also sued Kevin, dismissed him, and she is now pursuing their former homeowner and liability insurer, State Farm, under Louisiana's Direct Action Statute. Marai alleges that Kevin was partially at fault for the accident, and that State Farm is liable for his actions. State Farm asserted an exclusion in its policy wherein the policy's personal liability section provides that coverage will not apply to the bodily injury of any insured. The trial court granted summary judgment to State Farm based upon the validity of the exclusion.

III.

LAW AND DISCUSSION

Standard of Review

"Appellate courts review summary judgments de novo, under the same criteria *245 that govern the district court's consideration of the appropriateness of summary judgment." Benoit v. Roche, 94-715, p. 5 (La.App. 3 Cir. 6/14/95); 657 So.2d 574, 576; see also Schroeder v. Board of Supervisors, 591 So.2d 342 (La.1991). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966.

Issue of Law

In the present case, the facts are not in dispute. The issue is whether as a matter of law, the homeowner/liability policy could legally exclude coverage to the plaintiff for the injuries she sustained while an insured under that policy, or whether such an exclusion is against public policy. It is well settled that insureds and insurers are free to contract and limit their liability through exclusions as long as the exclusions do not violate statutory mandates or public policy. Hearty v. Harris, 574 So.2d 1234 (La.1991). The State Farm policy issued to Kevin and Marai Saltzman during their marriage generally provided for property damage to their house and other limited property, and provided personal liability coverage for the Saltzmans if their actions damaged others. The policy, like most personal liability policies, did not cover bodily injury to the Saltzmans themselves and contained the following language:

1) Coverage L and Coverage M do not apply to:
h) Bodily injury to you or any insured within the meaning of Part A or B of the definition of "insured."

An insured is defined as follows:

Insured means you and if residents of your household:
a) Your relatives; and
b) Any other person under the age of 21 who is in the care of a person described above.

The plaintiff contends that this exclusion of coverage for the bodily injury of a coinsured violates the public policy of Louisiana's Direct Action Statute, and is therefore unenforceable. We disagree.

Louisiana's Direct Action Statute, La. R.S. 22:655, addresses the tort victim's right of access to an insured who may be insolvent, in bankruptcy, or otherwise unavailable for service of process. It also pertains to suits between spouses. The statute provides in pertinent part:

§ 655. Liability Policy; insolvency or bankruptcy of insured and inability to effect service of citation or other process; direct action against insurer
A. No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy....
B. (1) The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy (emphasis added)....
D. It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons and their survivors or heirs to whom the insured is liable; and, that it is the purpose of all liability policies to give protection and coverage to all insureds ... for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy (emphasis added).

Ms. Saltzman focuses on only part of the language and interprets this provision as giving life to a policy consideration *246 which extends insurance coverage to "all injured persons," including herself as a named insured. However, the statute, which pertains to liability insurance, not personal medical insurance, clearly states that its purpose is to protect the insured against liability for his own tortious acts upon others. Moreover, Ms. Saltzman fails to observe that the statute clearly states twice in Subsection D that the protections will only be applied "within the terms and limits of said policy." Ms. Saltzman compares La.R.S. 22:655 to Louisiana's compulsory motor vehicle liability insurance statute, La.R.S. 32:861, generally known as the Compulsory Liability Insurance Law. La.R.S.

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736 So. 2d 243, 1999 WL 44843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saltzman-v-broussard-lactapp-1999.